from the infringement-as-restoration dept

One of the things I've never liked about copyright is its potential to be the functional equivalent of censorship. Sometimes this censorship comes about because an author didn't get permission to create his work in the first place (see: Richard Prince, JD California). While this unfortunately turns judges into cultural gatekeepers, it's been deemed a necessary balance between copyright law and the First Amendment, and harm to the public is arguably lessened by the fact that we don't know what we're missing; because the censored work is never able to reach and impact us, we've only lost the potential of its cultural contribution.

However, other times a work is created with the initial blessing of copyright, makes its mark on the public, then becomes effectively censored down the line due to licensing restrictions (see: The Wonder Years, Werewolf). This is much more culturally pernicious because it deprives the public of a work already in its lexicon, and the sense of loss is far more palpable as a result. Often, the only way to get the work back in the public's hands is to perform triage, excise the no-longer-licensed content, and try to be happy with a bastardized version of the work (see: WKRP in Cincinnati, The State).

What's interesting, however, is how we've seen the Internet step up to effectuate cultural preservation, when copyright law stands in the way. I recently picked up a DVD collection of Daria, one of the last good things MTV ever produced. The show had an immense impact on my childhood, in no small part because of how it helped frame pop culture for me with its liberal use of MTV-placed contemporary music, and I was incredibly excited to relive that experience. When I opened up the DVD case, however, I was greeted with the following message:

For those who can't see the note, it says in the pertinent part:

"So let's answer the big question right away: 99 percent of the music has been changed, because the cost of licensing the many music bites we used would have made it impossible to release the collection (and for many years did). So no, these aren't the shows as aired, but more like one of those astronauts in a TWILIGHT ZONE episode who returns from space and his wife can't figure out what's changed about him, until it slowly dawns on her that instead of a cool song from 1997 playing when he walks into the room, it's some tune she's never heard. Yeah, it's just like that."

Needless to say, I was disappointed. As I Googled around for more information, I could see many other fans of the series felt the same, opining that, "when I watch the show without proper music it feels as though one of the main characters is missing," and "even to those who say they didn't pay much attention to the music, I think you'll still sense an absence." Then I stumbled across something else entirely. Something called "The Daria Restoration Project."

Essentially, certain Daria fans had taken to combining the high-quality video and spoken audio of the official DVDs with the music that accompanied the original broadcasts, either sourced from old television recordings or by manually inserting the pertinent songs. They're doing their best to preserve the fidelity of a major piece of culture that is currently only legally available to the public in crippled form.

And of course, their curating efforts are 100% illegal, punishable by hundreds of thousands (if not millions) of dollars in fines.

To be sure, copyright owners are supposed to be able to control how their works are used to create new works outside the bounds of ideas and fair use (though we don't always get that right). However, allowing copyright licensing to prevent the public from accessing the proper versions of culturally-significant media, after their creation and initial publication has already been sanctioned, almost smacks of a marketplace parallel to the European "right of withdrawal." It not only presents a huge hurdle to the preservation of certain works, but robs the public of the value they placed in that media while it was available to them.

While the Internet is not nearly as "lawless" as many would like us to believe, there are certainly pockets of it where the traditional rule of law is less readily applied. And though this poses a challenge to society in some aspects, there is also undoubted utility in having these pockets able to function in the interest of the public, the proper beneficiaries of copyright law, when the legal state of play so radically conflicts with that interest. As a law student, I'm not happy when I see pirates doing a better job than copyright owners at preserving and spreading culture; after all, the Supreme Court recently noted in its Golan decision that copyright law can serve its core purpose not only by incentivizing the creation of works, but the dissemination of them as well. Yet here we see copyright hurdles completely inhibiting the proper dissemination of legally-created works through economic censorship.

Well, as John Gilmore once said, "The Net interprets censorship as damage and routes around it." So until copyright law manages to untangle itself and properly serve its own fundamental purpose, I'm glad we can rely on pirates to do its job for it.

from the new-funding-strategy? dept

Alex alerts us to yet another case of someone abusing copyright law to threaten someone. The story begins with Sherman Cahal, who runs the awesome site AbandonedOnline.net, on which he posts photographs from abandoned buildings. He recently posted photographs of the Waldo Hotel in Clarksburg, West Virginia. As you can see at the link, he doesn't just put up photos, but a rather detailed history of the building itself. Then there are a bunch of exterior photos, interior photos and even some historic photos of the building. I have to admit that I'm a sucker for this kind of photography. Check out just this one shot of the lobby, and then click on the links above to see the rest:

Of course, not everyone thought it was cool. In particular, the Vandalia Heritage Foundation, who currently owns the building and has been trying to raise money to restore it, sent Cahal a letter complaining about the photos, telling him that the photos were both evidence of trespassing and copyright infringement. While Cahal did not post the full letter there, I've seen the letter, and here's the specific part:

No individual with the Vandalia Heritage Foundation has authorized the creation, publication or copyrights of these photos. If you believe this is in error, please forward the contractual agreement stating permission to create, publish and copyright photos of the Waldo Hotel interior and roof to the following mailing address:

ATTENTION LEGAL DEPARTMENT
{redacted}
In addition, you can forward the contractual agreement stating permission to create, publish and copyright photos of the Waldo Hotel interior and roof to the following email address:
{redacted}

We formally request that all unauthorized Waldo Hotel interior and roof photos be removed from the following websites unless evidence of previous permission to do such can be provided

Later in the letter, they try to make things more "informal," but still remain pretty threatening:

Although still official, we would like to also address you in an informal tone. We understand that the articles associated with the Waldo Hotel on abandonedonline.net is in favor of preservation and revitalization of the property. And preservation and revitalization is what we do. However, there are multiple problems with the approach you decided to take. One, breaking and entering and/or trespassing was the only method by which these photos could have been taken. This costs us time, money, liability and security issues. Two, these photos are unauthorized and may contain content that damages efforts to save the hotel. Three, these photos are wrongly copyrighted by Sherman Cahal and it deprives us of our rights to profits or benefits. And similarly, four, these photos are being sold for personal gain on shermancahal.com which, again, deprives us of our rights to profits or benefits.

Now obviously this is not a cease and desist letter from an attorney. And thatís not the route we want to take. Paying an attorney to handle this would cost us time and money that would be better focused on restoring the Waldo Hotel. But consider this a warning shot and we will pursue further action if these requests are ignored.

If you are willing to donate photos - that we officially sign off on - to the Waldo Hotel Preservation Society for fundraising and informational purposes, we support that.

The problem with all of this is that the claims on copyright are almost certainly complete bunk. The group seems to assume that because they own the building, they automatically hold the copyright on any photographs of the building. This is a common misconception. While you can copyright architecture, that copyright does not prevent photographs. Basically, the copyright claim is ridiculous.

Cahal seems to understand this, and gave the Vandalia Heritage Foundation a quick lesson in copyright law. He also notes that even the trespassing claim they have is pretty weak. Either way, after educating the Foundation on copyright law, the Foundation realized that perhaps it was making a mistake. What's amazing is that they thought this was an appropriate tactic in the first place. Threatening Cahal for publicizing the building they've been trying for years to raise money to renovate seems counterproductive. These kinds of photos provide more publicity and perhaps more interest in the possibility of restoring the building.

It's pretty frustrating when you hear these kinds of stories. Even though it turned out okay in the end, this is yet another symptom of "ownership society," where people misunderstand and abuse copyright law to threaten people who are expressing themselves.

from the you-decided dept

Slashdot points us to the absolutely fascinating story of how Woody Guthrie's daughter was able to restore the only recording of her father's live performance, that had been bootlegged using an old obsolete recording device. It took quite a bit of effort to restore the recording on an old wire-based device, and the effort got the mathematician who handled the restoration nominated for a Grammy, which he won. However, what struck me most about the story is that these days, people would be focused on how that simple act of recording would have been copyright infringement back when it occurred. Shouldn't we be happy that exactly that kind of infringement is now what allows us to hear Guthrie perform live? I'm sure Guthrie himself would agree. After all, he famously had a rather similar view of copyrights to many of us around here: "This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do." Unfortunately, those who manage Guthrie's estate haven't always been so kind -- so it's nice to see they recognized this recording as a potential gem, rather than an unauthorized recording.